THE PEOPLE v. EDUARDO TORRES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Eduardo Torres appeals his conviction by a jury of three counts of a forcible lewd act upon a child, one count of aggravated sexual assault of a child and one count of unlawful sexual intercourse with a minor.   Appellant contends the prosecution committed prejudicial Griffin ¹ error in closing argument by commenting on the absence of a defense case and asserts that defense counsel was ineffective for failing to object to such error at trial.   We affirm.²

FACTS

In March 2007, the minor, a 13–year–old girl, was selling M & M'S candy to raise money to attend a camping trip sponsored by a school program.   The minor's mother drove her to a block of shops in Paramount, California that sold automotive related products and services.   She parked some distance away and waited in the car with the minor's infant sibling.

The minor went to several shops and sold some candy.   She reached what she later identified as Paramount Mufflers, a business owned by appellant.   She saw a white sport utility vehicle parked halfway in and halfway out of the garage at Paramount Mufflers and appellant, whom the minor later identified in a photographic lineup and at trial, getting out of the vehicle.   Appellant was wearing a jacket or windbreaker bearing the logo “Paramount Recreation Center.”   The minor went up to appellant and asked him if he wanted to buy some candy to help her raise money for a camping trip.   Appellant gave her $2, and the minor gave him a packet of M & M'S. While eating the candy, appellant engaged the minor in some conversation.   He told her he wanted to buy more candy but discovered he had only $1 in his wallet.   Appellant told the minor he would get another dollar from the shop office.

Needing a restroom, the minor asked if she could use the restroom real fast.   Appellant pointed out a bathroom at the back of the shop next to the office.   The minor walked toward the bathroom, and appellant fell in behind her.   As the minor started to pass the office door, appellant grabbed her wrist, squeezing “really hard.”   He told her to “wait up,” and he would buy the box of candy.   Feeling scared and not wanting to be there anymore, the minor told appellant it was okay and to just let her go.   Appellant refused, and the minor screamed.   He pulled her into the office, then sat in a garden chair grabbing hold of her other wrist and started to rub the inside and outside of her upper thigh.   Appellant repeatedly said he was going to buy some candy and the minor pleaded to be let go, saying, “No, just let me go, it's okay.”

Grabbing the minor by her hair, appellant tried to touch her crotch, then kissed her using his tongue.   He fondled her breasts, both over and under her clothing, and squeezed and rubbed them hard.   After a while he stopped kissing the minor and started to suck her breast as she continued to scream.   Appellant eventually exposed his penis and forced the minor to masturbate him.

Appellant continued to hold the minor down by her hair and then forced her backwards over the desk.   Then he pulled down her pants and raped her.   The minor testified that when appellant pulled out his penis, “white stuff” came out of it and some got on her leg.   The minor testified throughout the assault she screamed and yelled for help.   Afterwards, appellant left the office.   The minor hurriedly got dressed, afraid of what he next might do to her.   A few minutes later, appellant returned to the office and threw a dollar bill into the candy box before taking a second bag of candy.

The minor returned to her mother's car, and her mother yelled at her, saying, “What took you so damn long?”   The minor did not mention the assault to her mother fearing her mother would think the assault was her fault.

The next day at school, the minor exchanged notes during class with a friend, telling her she had been raped and asking the friend's advice on what to do.   The friend called her mother, who came to the school, talked to the minor and went with her to the assistant principal, who reported the incident to the police.

DNA tests performed on the minor's clothing demonstrated the presence of sperm cells on her panties and jeans and linked appellant to the minor with a high degree of probability.   During the following investigation, the minor identified Paramount Mufflers as the site of her assault, and the investigating detective confirmed the premises corresponded to maps the minor had drawn of the premises.   Appellant was arrested after he drove up to the shop, indicated he was the owner and confirmed he had once worked for the City of Paramount Recreation Department.

PROCEDURAL HISTORY

An amended information charged appellant with forcible lewd act upon a child (counts one to three) and aggravated sexual assault of a child (count four).   As to all four counts, the amended information alleged that the crimes involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness, and the victim was particularly vulnerable.   The amended information further charged appellant with unlawful sexual intercourse by a person over age 21 with a minor under 16 years (count five).   It was additionally alleged that appellant engaged in violent conduct, namely, a forcible lewd act on a child indicating a serious danger to society.

A jury found appellant guilty on all five counts.   It found true as to counts one to three that appellant engaged in violent conduct that posed a serious danger to society.   However, the jury found the allegations of great violence, great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness not to be true.

The trial court sentenced appellant to state prison for 15 years to life as to count four, the base count.   He was further sentenced to consecutive terms of two years, one-third the midterm of six years, as to counts one, two and three.   Pursuant to Penal Code section 654, the court stayed a sentence to count five.   Appellant was ordered to pay restitution and other customary fees and fines.

This timely appeal followed.

DISCUSSION

1. Prosecutorial Misconduct

Appellant contends the prosecutor committed prejudicial misconduct during closing argument by commenting on appellant's failure to testify in violation of Griffin.   He also argues he received ineffective assistance of counsel by his counsel's failure to object.   We disagree.

A. Forfeiture

Initially, respondent argues that appellant forfeited his argument because defense counsel did not object to the alleged Griffin error, nor did he seek any curative admonition.   There is compelling authority that, absent a showing that the harm could not have been cured, an appellant may not complain of prosecutorial misconduct unless he or she timely objected to the alleged misconduct and requested the trial court to admonish the jury.  (People v. Benson (1990) 52 Cal.3d 754, 794;  see also People v. Clair (1992) 2 Cal.4th 629, 662.)   Even appellant concedes that “it is a long-established rule that a ‘defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ”   Appellant, however, asserts his is a case in which harm caused by the prosecutor's comments could not have been cured.   But, even if it were presumed that the prosecutor's argument here constituted misconduct, such misconduct was not so pervasive that it could not have been cured by a prompt objection and admonition at trial.   As we discuss, the prosecutor's argument did not amount to misconduct and appellant could not have been prejudiced by the comments to the jury.

B. Prosecutor's Closing Argument

Under the Fifth Amendment of the United States Constitution, no person “shall be compelled in any criminal case to be a witness against himself.”  (U.S. Const., 5th Amend.;   see Cal. Const., art.   I, § 15.)   In Griffin, the United States Supreme Court held that the right not to testify also precludes the prosecutor from commenting on the exercise of a defendant's right not to testify.  (Griffin, supra, 380 U.S. at p. 615.)   Our Supreme Court has instructed that it is error when the prosecutor or court comments, either directly or indirectly, upon a defendant's failure to testify in his or her defense.  (People v. Medina (1995) 11 Cal.4th 694, 755 (Medina ).)

In the present case, during rebuttal, the prosecutor argued to the jury that “Mr. Urban [defense counsel] gets up there and tells you repeatedly, ‘You can't trust this girl;  you can't trust how she behaved during the SART [Sexual Assault Response Team nurse] exam;  you can't trust these inconsistencies;  you can't believe that;  that's not enough for you to convict.’  [¶] Well, we picked you because you're smart.   You're just not like little donkeys;  you don't just do what you're told, move forward, push forward, you know?   You have to be told why.   And I know you.   If we're going to ask you to do something, you want to know why, why should I? [¶] So when the defense gets up there and says to you, ‘you cannot find him guilty based on all these inconsistencies, you vote not guilty,’ you deserve to be told why.  [¶] Why shouldn't we trust this girl?   Why would she lie?   What's the motive?   Why would she make all this up?   If you don't want to believe this girl, why would she make it up?   Why would she lie?   Give me a logical explanation for that.  [¶] And you know what?   There isn't one, right?   He didn't give you a logical explanation for why she would go to all these lengths for that.  [¶] And if there isn't one that Mr. Urban can point to, a logical explanation for that, it's because there isn't one.   It's because the truth is the truth is the truth.”  (Italics added.)

Appellant suggests that the prosecutor stepped over the line under Griffin, because her comments were an indirect reference to the fact that appellant did not take the stand, his attorney made no opening statement and the defense called no witnesses.   Appellant further notes that the prosecutor's comments improperly highlighted to the jury defense counsel's decision to introduce no evidence and to have appellant make no statements.   Appellant argues the prosecutor, as the prosecutor in People v. Guzman (2000) 80 Cal.App.4th 1282, 1288, focused on a hole in the defense case that only appellant could fill, because only appellant and the victim were present when the victim was or was not raped.   Appellant suggests that by dwelling on holes in the defense only appellant could fill, the prosecutor was improperly drawing the jury's attention to the fact that appellant did not testify at trial.

Griffin, however, does not preclude a prosecutor from commenting on the state of the evidence;  nor does it prevent allusion to the defendant's failure to call logical witnesses or introduce material evidence.  (Medina, supra, 11 Cal.4th at p. 755;  People v. Vargas (1973) 9 Cal.3d 470, 475.)   The prosecutor in the instant case noted defense counsel's failure in closing argument to offer any alternate explanation of the events at issue.   She pointed out to the jury that although the defense repeatedly attacked the victim's credibility, defense counsel never gave the jury a “logical explanation” for why the victim would go to such great lengths to make up a story about appellant.   Contrary to appellant's contention, the prosecutor made no comment nor even an indirect reference regarding appellant's failure to testify.

When, as here, a prosecutor's argument makes no reference to the fact that a defendant has not taken the stand, and the comments are not susceptible of such an interpretation by inference, there is no Griffin error.  (Medina, supra, 11 Cal.4th at pp. 755–756 [prosecutor in rebuttal argument rhetorically asked, “Where was Mr. Lewis' [defense counsel] rational explanation?   How does he explain away the evidence.. ?,” and then declared, “Nobody on the defense side—excuse me, the defense attorney did not explain this evidence and how it pointed to some other rational conclusion, because it doesn't, and he can't”];  People v. Morris (1988) 46 Cal.3d 1, 35–36 [prosecutor told the jury, “Keep in mind that there is not a shred of evidence.   Not a shred to suggest that anybody else did the killing, other than [the defendant]” and “Put yourself in the position of being a defendant, and you can bet your boots that if you had anything to offer by way of evidence, by way of alibi, that you would offer it.   Be assured of that”], disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543–545;  People v. Bethea (1971) 18 Cal.App.3d 930, 936 [prosecutor argued to jury that “[t]he state of the record is that there has been no explanation given for” the People's evidence of guilt].)

The prosecutor's argument in any case was made in rebuttal to defense counsel's repeated suggestions to the jury that the victim should not be believed or trusted.   Defense counsel's closing argument magnified the purported inconsistencies in the victim's recounting of what happened and called the jury's attention to the victim's behavior after the incident—her failure to tell her mother about the assault and her conduct in continuing to sell candy afterwards, as well as her participation in family outings to visit a friend and to the movies—as not being consistent with someone having just been raped.   He argued to the jury that there was no explanation for those inconsistencies and behavior other than that she was not telling the truth.

A prosecutor has wide latitude in argument so long as his or her arguments are fair comments on the evidence.  (People v. Hill (1998) 17 Cal.4th 800, 819.)   He or she may vigorously argue the case.  (Ibid.) A prosecutor's questioned remarks should be viewed in context and in light of the defense argument that preceded it.  (See Darden v. Wainwright (1986) 477 U.S. 168, 179;  People v. Powell (1980) 101 Cal.App.3d 513, 520–521.)   If made in response to statements or arguments raised by defense counsel, a prosecutor may offer a fair rebuttal to the jury even if the prosecutor's comments would otherwise constitute misconduct if made in the first instance.  (See 5 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Criminal Trial, § 598, pp. 855–857;  People v. Corona (1978) 80 Cal.App.3d 684, 725–726.)   The comments the prosecutor made during her rebuttal were reasonable responses to the questions raised by defense counsel.   In fact, the prosecutor's comments to the jury did not purport to be, nor can they be inferred to be, comments on appellant's failure to testify.   The prosecutor did not go beyond the permissible bounds of fair argument.   Her argument constituted fair comment on the state of the evidence, which falls outside the purview of Griffin.  (Medina, supra, 11 Cal.4th at p. 756.)

Nor was it likely the jury could have misconstrued the prosecutor's comments.   The jury was instructed that a defendant has an absolute constitutional right not to testify and he may rely on the state of the evidence.  (CALCRIM No. 355.)   The trial court also instructed that neither side was required to call all witnesses who may have information or to produce all physical evidence that might be relevant.  (CALCRIM No. 300.)   The court further instructed that the People had the burden of proof beyond a reasonable doubt and the defendant is presumed innocent (CALCRIM No. 220), that statements made by the attorneys are not evidence (CALCRIM No. 222), and that the juror's decision must be based only on evidence received at trial (CALCRIM No. 200).   We presume the jury followed the trial court's instructions.  (People v. Horton (1995) 11 Cal.4th 1068, 1121.)   Indeed, there is no indication it did not.

We find no Griffin error in this case.

2. Ineffective Assistance of Counsel

Because there was no Griffin error, it follows that counsel was not ineffective for failing to object or otherwise argue the point.  (People v. Ochoa (1998) 19 Cal.4th 353, 463 [“Representation does not become deficient for failing to make meritless objections.   There was no misconduct, so no reason to object to the questions”].)

DISPOSITION

The judgment is affirmed.

WE CONCUR:

FOOTNOTES

FN1. Griffin v. California (1965) 380 U.S. 609 (Griffin )..  FN1. Griffin v. California (1965) 380 U.S. 609 (Griffin ).

FN2. In a separate order, we deny appellant's petition for habeas corpus based on ineffective assistance of counsel..  FN2. In a separate order, we deny appellant's petition for habeas corpus based on ineffective assistance of counsel.

BIGELOW, P. J. RUBIN, J.